Negligent infliction of emotional distress is a cause of action available when a family member is at the scene of their loved one’s accident at the time of the accident or shortly thereafter and witnesses their injuries at the scene before there is a material change in the circumstances. In March, Division Three of the Washington Court of Appeals found that a woman could recover damages on a negligent infliction of emotional distress claim, despite knowing about the accident prior to arriving on the scene. Recently, Division One reviewed a case in which a mother knew her son had been killed in the accident before she arrived on the scene.

The plaintiff’s 17-year-old son died from mechanical asphyxiation as a passenger in an automobile accident. The plaintiff lived near the scene of the accident. One of her son’s friends stopped by her home and told her to call her son because there had been an accident. The plaintiff testified that she received no answer when she tried to call. The driver’s father subsequently came to the plaintiff’s house and informed her there had been an accident, and her son had not survived. The plaintiff and her husband then drove to the accident scene.

They arrived at the scene about 20 minutes after the accident. The area was surrounded by emergency vehicles, and the scene was blocked off. The plaintiff’s son was lying on the side of the road, covered by a sheet.

The plaintiff was diagnosed with post-traumatic stress disorder. She has not returned to work since the accident occurred.

The plaintiff, individually and as the personal representative of her son’s estate, filed suit against the driver and his parents. The plaintiff’s underinsured motorist carrier intervened, and she amended the complaint to add the insurer as a defendant. Her negligent infliction of emotional distress claim against the insurer was dismissed by summary judgment. She appealed.

Negligent infliction of emotional distress allows a family member to recover compensation for foreseeable injuries resulting from seeing a physically injured family member soon after a traumatic accident. Washington law recognizes this cause of action when the plaintiff sees the loved one’s injuries at the scene of the accident soon after it occurred and before any “material change in the attendant circumstances.”

If the plaintiff does not see the accident or see the victim shortly after the accident, the plaintiff generally cannot recover for negligent infliction of emotional distress. Washington courts have held that the plaintiff must have a personal sensory experience of the victim’s pain and suffering.

The plaintiff here was told about the accident by a third party. She arrived at the scene about 20 minutes after the accident and after emergency responders had blocked the area off. Her son had been moved from the vehicle and was covered by a sheet. Emergency responders prevented her from getting close to her son’s body. The appeals court found there had been a material change in the scene because the plaintiff’s son had been moved. The appeals court also found the plaintiff did not have a sensory experience of her son’s pain and suffering because she had not seen symptoms of his injuries or heard the victim. Furthermore, she was already aware of her son’s death when she arrived at the accident scene. The appeals court affirmed the trial court’s grant of summary judgment, finding no error in the conclusion that the plaintiff was not a foreseeable plaintiff.

Negligent infliction of emotional distress is intended to be a limited cause of action, and it can therefore be difficult for plaintiffs to prevail. However, it is highly fact-specific and should be carefully considered any time a family member arrives on the scene. In this case, the plaintiff had been told her son had not survived the accident, and he had been moved before she arrived. In the Division Three case, the plaintiff arrived before her husband was moved, and she was able to get near enough to him to hold his hand and speak to him. These facts allowed the plaintiff in the Division Three case to recover damages.

An experienced Washington car accident attorney can review the facts of your case to determine how to proceed. If you or a loved one has been hurt in an automobile accident, call Blair & Kim, PLLC at (206) 622-6562.